*1
Jessie a Minor
Through MORRIS, her Mother Jackie Guardian, Plaintiff-Appel-
and Natural
lant, THOMSON, M.D., individually,
James
Defendant-Respondent.
No. 22202. Idaho,
Supreme Court of
Boise, December Term.
May 15, 1997. *2 McColl, Boise, plaintiff-ap- &
Wilson argued. pellant. J. Debrha Carnahan Smith, Hull, Boise, Quane, Howard Quane, defendant-respondent. A. Jeremiah argued.
TROUT, Chief Justice. appeal jury
This is an from verdict judgment Dr. Thomson for defendant James malpractice in a suit. medical I.
BACKGROUND (Jessie) 4,1988, July On Morris Jessie (Moms) born Morris to Jackie at Walter Emmett, Hospital Knox Memorial Idaho. Thomson, family practitioner James treating physician Morris’ Emmett and dim- Jessie, ing pregnancy, delivered who ex- perienced asphyxia (oxygen deprivation birth birth). immediately before or after As a result, suffers she from severe mental retar- dation, impairment, palsy, vision mi- cerebral (small head), crocephaly paralysis. II.
PROCEDURAL HISTORY Morris, May On Jackie on behalf daughter, medical of her filed a against suit Dr. Thomson and Walter Knox hospital Hospital. Morris Memorial trial, prior to trial. At reached a settlement did meet alleged that Thomson not Morris by improperly required standard monitor, improperly using heart inter- a fetal data, failing monitor preting the fetal heart case, monitor, failing given for cause in a we do scalp to use a fetal excuse necessarily recognize circumstance signs distress after birth and to think that either juror’s him impairs partiality prevents begin immediate resuscitation efforts. solely on jury rendering from a decision based returned a verdict for Dr. Thomson law. The decision the evidence and the April May 1995. On *3 patients] [current to or whether to exclude filed motions for a new trial and alter made in each instance on the judgment. August should be amend the On under the es- particular involved and these motions. facts district court denied principles governing excuse for subsequently this tablished appealed to Court Morris prior rulings made cause. several of court’s during the trial. (footnote omitted). Id. reasoning persuasive, This is and we III. per a auto refuse to create se rule likewise
DISCUSSION jurors. By re matically disqualifying such question individually each quiring counsel to A. district court’s refusal auto- The juror regarding or rela prospective his her matically poten- all dismiss for cause defendant, able tionship with counsel will be doctor-patient jurors having a tial challenge a any and to such to uncover bias relationship Dr. with defendant juror As the case at bar demon for cause. Thomson. strates, likely will dismiss these the court selection, jury beginning At Morris they A jurors that are biased. ground on automatically all sought for cause excuse protection per provide se rule thus no would jurors patients who were malpractice cases for in medical ground a rela- Thomson on the business already enjoy. In medical they do not tionship existed between them and defen- actions, then, parties malpractice 47(h)(3). de- The court dant. See I.R.C.P. former challenge for cause current and/or request, ruling nied would this or patients of defendant doctor remove juror this question each individual challenges. through peremptory them use ruling. appeals this issue. Morris adopt per a se urges this Court jurors Plaintiff Plaintiff also that these malpractice in actions automati- rule medical pursuant excused should have been jurors prospective all cally disqualifying 47(h)(3) being “united in busi I.R.C.P. relationships 47(h)(3) doctor-patient current pro I.R.C.P. ness” with defendant. to do The court We decline so. challenge defendant. for cause one a vides that basis Ratcliff, 874 Poynter Poynter ex v. rel. ... in business with either “being united (4th Cir.1989), the issue addressed doctor-patient relationship, F.2d 219 how A party.” The court adopt ever, such a rule. of whether This provision. not does fall within per se do so on the phrase refused to “united has examined the Court identical) exceptional (but rules should be created in an found earlier business” “circumstances, Chattin, [a as a such where 17 situations rule. Hall v. version of this See (1910). out- interest the trial’s juror’s] 664, financial P. 1132 “Business” Idaho come, prejudice.” a likelihood of show clear “com of that section constituted purposes relationship, doctor-patient enterpris mercial, Id. at 222. professional industrial and however, a risk jointly not create clear does men engagements into which es and Although a 668, 106 Id. the bond between at We noted prejudice. P. enter.” Id. may pose patient particular provision a purpose doctor and behind this that the risk, of whether a the determination juries such those individuals whose from exclude juror’s a relationship affects doctor-patient could be affect interests business or financial on an individual be made impartiality litigation: should “It ed the outcome or interests thought in the evidently not wise basis: associate justice a man’s business to have malprac- particular patient or Although a business, his juror in a case where warrant, as a require, or act might tice defendant
lAI
ly passed
perempto-
Hill for
used a
moneyed, or other
are at stake.”
cause but
interests
Id.,
appeals
doctor-patient
ry challenge to
Clearly,
with defendant Thomson. challenges for cause. prospective juror questioned, Quincy, 102 Idaho P.2d at The second at 308. (and Hill, Hedger, possibly a cur- Mrs. former See also rent) decision, (upholding patient of Dr. Morris chal- at 1333 trial court’s Thomson.1 ques- charges Hill cause. further trial of defendant on criminal includ- lenged After court, rape, refusing cause tioning by ing pro- both the and the to excuse for defense juror spective re- had satisfied itself that Hill could whose first husband been court rape, motion current husband impartial main denied convicted whose years subsequent- pled guilty to three her for cause. had sexual abuse excuse doctor, go Hill was tor and that if she were to back to unclear from record whether It is not, patient. probably that Dr. to him. She had or former She stated she would however, return current original year. over doc- seen him in over one had taken from her Thomson previously, sit in the and who had worked for two the doctor some fashion is, asking years support group jury. you I am can with a for victims of What abuse). you put relationship aside? domestic A: Yes. Such a situation exists in this case. Hill initially during stated voir dire that she be- going present- Q: —and hear what be relationship lieved that her with Dr. Thom- sides, and then whatever ed both ability son could affect her to render a ver- be, you determine the facts be able plaintiff. dict fair to Such bias is apply the the Court will law that challenge for a for cause. See I.R.C.P. your you on and own instruct come to 47(h)(7). questioning by Further defense decision. counsel, however, elicited Hill’s assurance Yes, I A: could. put relationship that she would aside Q: you being do it And could without Thomson, with Dr. to remain im- endeavor party or the other. biased towards one partial, and follow the instructions: court’s A: Yes. Q: you .... does that mean that couldn’t deny I the motion excuse for Court: will impartial fair? be cause. my daugh- A: I three No. can understand — deny plaintiffs challenge The court did not *5 healthy, I perfectly but can see ters are that Hill until it had assured itself could coming is from. where she impartial. not remain The court thus did Q: handicapped. her is Because child by failing its discretion abuse dismiss A: Yes. for cause. Well, Q: you you that because think Communications between defense C. your want someone frame wouldn’t treating former counsel and Jessie’s sitting your jury you if of mind on plaintiff physicians without notice to ease, bringing that mean
were does dis- and outside the course formal you you certainly wouldn’t be that — covery. side, unfair to either I take it. No, A: I trial, wouldn’t. During Morris dis- the course attorney spoken, that Thomson’s had covered judge’s in- Q: you obey the And would formal plaintiff and outside without notice structions, I it. take channels, physicians discovery with two who Yes, A: I would. during month of had treated the first Jessie impartial Q: you possi- as as And would be one of these her life. Thomson retained ble. Sell, expert Dr. as an witness. physicians, Yes, I A: would. trial, however, Dr. refused At time of Sell # [*] 5*5 other testify. physician, Morris as a fact witness and called Dr. Watkins, learned you get Q: that if do selected I take it during Dr. contact Wat- of defense counsel’s give jury, you the Court on would sit testimony. Plaintiff that these kins’ asserts us, assurances, the rest your and defense counsel between communications Dr. your knowledge of despite treating physicians that former were plaintiffs Thomson, you ... that follow would they outside the improper because occurred impar- discovery and be the Court’s instructions rules procedures outlined they tial. error be- argues that constitute they changes the doctors’ resulted cause Yes, I A: would. testimony at trial. regarding Hill questioned further The court any bias: 1. Dr. Sell it, Hill, your I Q: as understand Mrs. with re cannot error Plaintiff assert you plaintiff was that
response to the has not demon she Dr. because gard not Sell want thinking that she were communication that counsel’s strated defense somebody connected to have s timing leading to Jessie any way prejudiced her. of the events with Dr. Sell redirect, attempted The record does not indicate that their dis- In her condition. any opinion indeed cussion had effect on Dr. Sell's Watkins did to show testimony, had opinion not and that the doctor or on his as he did such an counsel opinion expressed trial. prior The defense during a conversation. 2. Dr. Watkins objec- objected, court sustained tion, apparently object Morris did at trial to de not called Dr. had not Watkins parte ex fense counsel’s communication with opinion. qualified to render such an preserve Dr. Watkins thus did not appeal. City issue for Lawton v. Pocatel issue because do not address this We lo, 464-65, 340- 886 P.2d appeal. preserved not it for Morris has Co., Mfg. v. Nicholson Lankford 103(a)(2) provides party can that a I.R.E. 1120, 1122 126 Idaho part the trial error on the assert Ollie, also See Pearce v. party excluding court in evidence where (1992) (learning describing the proof made an offer at trial parte that defense counsel ex had conducted sought be admit of the evidence substance plaintiffs treating physicians interviews Plaintiff, however, make an did not ted. retained them for the and had as witnesses proof she regarding offer of defense, plaintiff prevent the de moved to re to elicit from Dr. on intended Watkins witnesses). calling fense from these direct, any and we thus do not have basis Furthermore, discovery the formal to rule. preclude rules do informal communica ordinary tions between defense counsel striking E. The district court’s *6 plaintiff It is fact witnesses. clear that did testimony expert plaintiff's of the of expert not retain Dr. an witness Watkins as witness, Giles, the Dr. referred to that anticipation litigation of not call and did requiring of a standard of care the use testify any regarding expert Dr. to Watkins scalp fetal monitor. Instead, opinions formed. called Dr. testify to to Watkins her direct observations trial, beginning to the Morris Prior of witness, discovery of As a fact the Jessie. pertaining exclude to her moved to evidence rules do not limit defense counsel’s access to sexually-transmitted history of diseases Watkins, speak Dr. and the is free to defense (STDs). motion, granted judge rul- willing. to the if she is witness ing that no mention made of Morris’ could be impact history highly prejudicial due to the district allow D. The court’s refusal jury. Dur- evidence could such have witness, question her own case-in-chief, expert ing her Morris called an Watkins, regarding prior Dr. state- Giles, witness, testify Dr. to the standard concerning ments witness made required family practitioner of a of care timing opinion as to the of Jessie’s Emmett, Idaho, at the birth. time of Jessie’s injuries. things, Among other Dr. Giles testified Dr. required of that a fetal During Morris’ direct examination the standard Watkins, exhibits repeatedly scalp used the term monitor be used when a fetus counsel apparent- such To rebut asphyxia.” signs counsel of distress as Jessie’s. Defense “birth testimony, during this its case-in- jury that the construe this defense ly feared would Clark, expert Dr. wit- opining chief called another mean that Dr. was term to Watkins birthing proof an offer of injuries during the ness. The defense made occurred that the presence jury that Dr. outside the Consequently, in his cross-exami- process. history clarify of nation, wheth- Clark would that Morris’ attempted to defendant scalp fetal opinion as to contraindicated the use of a offering an STDs Dr. er Watkins pierces the because the injuries, and Dr. Wat- monitor electrode timing of Jessie’s scalp exposes as to the fetus and the fetus opinion no of that she had kins asserted specific ob- instance of Dr. testimo- infection. Morris continued to Giles’ STDs, ject strongly any seriously prejudiced ny point, reference to on this any the court refused to allow mention of the situa- defendant. The court remedied this history. then by striking portion mother’s medical Defendant of Dr. Giles’ tion manner, prevented Dr. portion testimony. moved to strike that Giles’ this it testimony referring allowing to the standard of care prejudice (by both to Morris history) requiring scalp the use of a fetal monitor. to Morris’ medical defendant refer granted (by testimony The court and instructed striking motion and to Thomson jury disregard re- that Thomson could not Morris’ witness testimony. history). referring Giles’ this medical but without compromise ruling This was a reasonable Again, Morris asserts of discretion. did not constitute abuse erroneously court district excluded evidence. The Court trial court decisions ad reviews Jury Special F. verdict form and Instruc- evidence, mitting excluding including jury No. which instructed tion witnesses, testimony under the in medical on the standard of care Burgess v. abuse discretion standard. malpractice cases. Co., Ltd., 127 Salmon River Canal (1995). 565, 574, 903 P.2d In the Special 1. verdict form ruling regarding of an evi case incorrect dence, in her Morris did not discuss this issue merited if error new trial is to this Court. We thus par briefs submitted right affects a substantial of one of the 103; City Valley it. 61; refuse to address Sun Burgess, 127 ties. I.R.C.P. I.R.E. Co., 739; Valley 128 Idaho 912 P.2d v. Sun Idaho at 903 P.2d Hake (‘We (1996) DeLane, address issues will not sup- appeal completely are without authority.”). port, argument, or Morris first that the district be striking court erred Jury Instruction No. un cause defendant’s motion to strike was timely. Regardless of the motion whether gave following court district untimely, court exclude the trial jury regarding stan instruction to the *7 by a on its au party offered own evidence malpractice dard care in medical cases: of thority, to or an without a motion strike governing proof the The Idaho statute objection by opposing party. See made the prac- community of health care standard Mining Mining Star-Morning Hecla v.Co. provides, rele- malpractice tice in case in 1192, 782-83, Co., 778, 122 P.2d Idaho 839 any In part, follows: claim vant as (1992). 1196-97 against any physician plain- damages such must, part of his or not tiff as an essential that the trial court did
holdWe chief, affirmatively prove by direct case in excluding in the testimo abuse its discretion expert preponderance and in a difficult at The court was ny issue. evidence, competent that such the to allow the all Had the court refused position. negligently failed physician and there regarding then present evidence Mor to defense of health applicable to standard refused to meet the history of and also ris’ STDs community in practice of the which testimony regarding the use care Dr. Giles’ strike have allegedly was or should monitor, rights of such care scalp substantial a fetal as standard existed at provided, been such impaired. Such have been would defendant negli- alleged place of the considerably prejudiced the time and ruling would such stan- rebutting gence physician and as of such by preventing him from defendant respect to then and there existed with appli the dard he had violated allegation that one physician physician that such judge’s the class decision of care. standard cable belonged to and in which then and there medical to Morris’ all reference to exclude would, functioning. he she capacity or to history prejudice Morris prevent
145
witness,
qualified
judged in
the defense’s
physician
be
such
shall
Such
local standard
similarly
as to the
give
opinion
trained
comparison
in
cases
contrary to
the
class
that this is
qualified physicians of
same
care. Morris
community, taking into ac-
establish
same
case law which
both statutes
training, experience,
non-local,
count his or her
and even
may call
specialization,
any.
if
of medical
fields
out-of-state,
testify to the stan-
experts to
If
physician in the
there be no other like
fails for two
argument
care. Morris’
dard of
practice is
community and the standard of
reasons.
indeterminable,
such
evidence of
therefore
standard in similar
at
Idaho communities
given mirrors
First, the instruction
may
said time
be considered.
6-1012,
§
defines
which
language of I.C.
“community” refers to
The term
care in medical
standard of
ordinarily
by the
geographical area
served
provides,
6-1012
in Idaho. Section
actions
general hospital at or nearest
licensed
like
be no other
part: “If there
relevant
provided.
such care was
community
the standard
provider in the
added). Although
Morris did
(emphasis
indeterminable, evi
is therefore
practice
trial,
object
at
the chal
to this instruction
Idaho com
in similar
of such standard
dence
jury
is nonetheless
lenge to a
instruction
considered.”
time
be
munities at said
City/
appeal. Lubcke v. Boise
preserved for
consistently upheld instructions
We have
Auth.,
124
County Hous.
Idaho
Ada
correctly explaining
§
upon
6-1012
based
653,
appeal, we
P.2d
666
On
860
of care.
jury
applicable standard
to the
jury
instructions as a whole
review
902, 905, 821P.2d
Kiefer, 120 Idaho
Leazer v.
they “fairly
ade
determine whether
Richards,
115
Robertson
960
ap
and state the
quately present the issues
(1987) (on
Lawton, 126 Idaho at
plicable law.”
1989).
addition, the instruc
rehearing,
If an instruction misleads
very
are
similar
upheld
tions
Robertson
jury
prejudices
parties,
one of the
revers
Robert
in the instant case.2
those at issue
Id.,
modify
§
of
6-1012 to broaden
in similar communities.
standard
plaintiffs may
the context in which
refer to
correctly
jury.
judge
instructed the
the standard of care in similar communities.
assertions,
Contrary to
the associ-
Morris’
Morris, however, is incorrect. Section 6-
law does not lead to a different
ated case
1013,
“Testimony
expert
entitled
of
witness
upheld trial court deci-
conclusion. We have
standard,”
community
establishes the
experts
holding
plaintiffs’ non-local
sions
by
local
method
which both
and non-local
adequately
familiarize themselves
did not
experts may testify regarding the standard
community
standard of care in the
with the
of care:
malpractice allegedly occurred.
in which the
applicable
practice
standard of
Valley Regional
Magic
v.
Medical
Dekker
such a defendant’s failure to meet said Center,
(1988),
332,
concurring. McKAY, single person; and Robynne a L. I concur the result but Inc., guardian caution that the for Co-Ad, litem ad opinion in A. Court’s III. not be read broad- Butler, Wayne McKay a minor Daniel that, ly. The Court comments “[t]he doctor- Plaintiffs-Appel- person, disabled patient relationship, however, does not create lants, clear prejudice.” Emphasis a risk of should placed opposing be concern. The Owens, Doe and Jane OWENS doctor-patient relationship R. Bruce creates a serious wife, com and the marital prejudice, risk of determination husband thereof, & munity composed Howard patient whether should remain on the P.A., professional ser jury panel approached Owens, should with ex- Idaho be an treme caution. L. Manweiler corporation; Howard vices Manweiler, husband Doe and Jane actually a most instances if there is community com wife, marital and the juror doctor-patient relationship current Manweiler, thereof, Bevis posed & disqualified I.R.C.P. will be for under cause professional Cameron, P.A., an 47(h)(3) Ironically, as a doctor. debtor corporation, Defendants-Re services more concerned people probably most are spondents. than retaining with their doctor goodwill with upon whom a The doctor creditor. No. 22134. juror on-going dependent prospective Idaho, Supreme Court intimate of what be medical treatment Boise, 1996 Term. December likely important in health is more details of juror’s who can be life than the creditor May rela- Regardless, doctor-patient paid. a chal-
tionship is not one of bases 47(h). district
lenge under I.R.C.P. properly issue under approached
court remains, however, point law. The
existing ruling should be read cau-
that this Court’s
tiously. juror runs several
Examination of First, may have doctor dealt
risks. juror’s
intimate, life. personal of the details juror share a frank may be hesitant to Addi- these circumstances.
opinion under juror
tionally, runs the of the examination constituting testimonial on a sworn
risk of can influence other
behalf of the doctor caution panel. Extreme
members limiting type of exami- be taken
should in front of juror place takes
nation of the tainted. jurors panel be the entire
other lest relationship is doctor-patient
Because the challenge for as basis for
not enumerated 47(h), dis- and because
cause in I.R.C.P. record, I appropriate developed court
trict result, though I caution care
concur
such cases.